Opinion
E068495
01-28-2020
THE PEOPLE, Plaintiff and Respondent, v. OLIVIA CHRISTINA GILBERT, Defendant and Appellant.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FWV1600482) OPINION APPEAL from the Superior Court of San Bernardino County. Michael R. Libutti, Judge. Affirmed in part; reversed in part with directions. Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On February 11, 2015, a felony complaint charged defendant and appellant Olivia Christina Gilbert and codefendant Tjen Hin Thjin with grand theft of personal property, in violation of Penal Code section 487, subdivision (a) (count 1). On June 1, 2017, defendant pled guilty to grand theft of personal properly. On the same day, the trial court placed defendant on formal probation.
Codefendant Tjen Hin Thjin is not a party to this appeal.
All further statutory references are to the Penal Code unless otherwise indicated.
On June 7, 2017, defendant filed a timely notice of appeal. On July 2, 2018, we filed an opinion affirming the judgement. On October 23, 2019, the California Supreme Court ordered this court to vacate our decision and reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1115. On October 24, 2019, we vacated our opinion filed on July 2, 2018, and requested supplemental briefing. On November 6, 2019, defendant filed her supplemental brief. We hereby issue this new opinion.
B. FACTUAL HISTORY
Over the course of six months in 2016, defendant, working with coparticipants, embezzled approximately $50,000 from her employer, Staples. This activity appeared to be part of a larger embezzlement scheme that included other Staples stores. The fraud involved the creation of hundreds of fraudulent online accounts in the names of the coparticipants. Defendant would post fictitious ink cartridge redemptions to the fraudulent accounts. The coparticipants would then use the redemption monies in the accounts to purchase new ink cartridges at Staples stores. For her role in the scheme, the coparticipants paid defendant with cash and gift cards. Defendant personally input approximately 1,555 separate transactions.
DISCUSSION
Defendant contends that an electronic-search condition is unconstitutionally overbroad. Pursuant to the Supreme Court's ruing in In re Ricardo P., supra, 7 Cal.5th 1113, we agree with defendant.
In this case, when the court placed defendant on probation, it imposed various terms and conditions. The term required defendant to "submit to search and seizure (electronic device) by a government entity of any electronic device that you are an authorized processor of pursuant to PC 1546.1(c)(10)." Defendant objected to the term. The prosecutor asked for the search term based on the complex fraud scheme in the underlying matter and identity theft.
"When an offender chooses probation, thereby avoiding incarceration, state law authorizes the sentencing court to impose conditions on such release that are 'fitting and proper to the end that justice may be done.' " (People v. Moran (2016) 1 Cal.5th 398, 402-403, quoting § 1203.1, subdivision. (j).) "[A] sentencing court has 'broad discretion to impose conditions to foster rehabilitation and to protect public safety.' " (Id., at p. 403.) " 'If the defendant finds the conditions of probation more onerous than the sentence he would otherwise face, he may refuse probation' [citation] and simply 'choose to serve the sentence.' " (Ibid.)
"The trial court's discretion [to impose probation conditions], although broad, nevertheless is not without limits." (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) Under People v. Lent (1975) 15 Cal.3d 481, " '[a] condition of probation will not be held invalid unless it "(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality." ' " (People v. Olguin (2008) 45 Cal.4th 375, 379, quoting Lent, at p. 486.) "This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term." (Olguin, at p. 379.)
It has always been undisputed that the electronics search condition satisfies the first two prongs of Lent's invalidation test. But the Attorney General originally argued—and we agreed—that the condition met the third Lent prong because it reasonably related to future criminality by enabling defendant's probation officer to effectively supervise her. (See People v. Olguin, supra, 45 Cal.4th at pp. 380-381 ["a probation condition 'that enables a probation officer to supervise his or her charges effectively is . . . "reasonably related to future criminality" ' "], italics added.) However, in Ricardo P., the Supreme Court clarified the third Lent prong as it relates to electronics search conditions.
In Ricardo P., a juvenile who admitted to committing two burglaries was placed on probation subject to an electronics search condition. (Ricardo P., supra, 7 Cal.5th at pp. 1116-1117.) Although the juvenile had not used an electronic device in the charged offenses, the juvenile court justified the condition by (1) construing the juvenile's statements to his probation officer as admitting he had used marijuana in connection with the offenses, and (2) " 'find[ing] that minors typically will brag about their marijuana usage . . . by posting on the Internet, showing pictures of themselves with paraphernalia, or smoking marijuana.' " (Id. at p. 1117.) Therefore, the juvenile court reasoned the ability to search the juvenile's electronic devices was " 'a very important part of being able to monitor [his] drug usage.' " (Ibid.)
On appeal, the appellate court concluded that the electronics search condition was valid under Lent's third prong. The Supreme Court, however, disagreed. (Ricardo P., supra, 7 Cal.5th at p. 1119.) The high court explained that "Lent's requirement that a probation condition must be ' "reasonably related to future criminality" ' contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition." (Id. at p. 1122.) The court found "[s]uch proportionality . . . lacking" because "nothing in the record suggests that [this juvenile] has ever used an electronic device or social media in connection with criminal conduct." (Ibid., italics added; see ibid. ["courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense"].) Thus, the juvenile court's generalized finding that juveniles use electronic devices to brag about marijuana use was insufficient to justify the condition because "Lent's third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality." (Id. at p. 1121.)
The Supreme Court was careful to note that its "holding does not categorically invalidate electronics search conditions. In certain cases, the probationer's offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality." (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129, citing People v. Appleton (2016) 245 Cal.App.4th 717, 724 [finding electronics search condition reasonable because the defendant lured victim using " 'either social media or some kind of computer software' "]; In re Malik J. (2015) 240 Cal.App.4th 896, 902 [condition allowing officers "to search a cell phone to determine whether [the defendant] is the owner" was reasonable in light of the defendant's "history of robbing people of their cell phones"]; People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1173, 1176-1177 [finding electronics search condition related to the defendant's future criminality where the defendant was convicted of making gang-related criminal threats and had previously used social media sites to promote his gang].) But, on the record before it, the Ricardo court found "the electronics search condition imposes a burden that is substantially disproportionate to the legitimate interests in promoting rehabilitation and public safety." (Ricardo P., at p. 1129.)
"From [Ricardo P., supra, 7 Cal.5th 1113] we glean the following guidelines for determining when an electronic[s] search condition survives the third prong of Lent . . . . First, there must be information in the record establishing a connection between the search condition and the probationer's criminal conduct or personal history—an actual connection apparent in the evidence, not one that is just abstract or hypothetical. [Citation.] But no nexus between the search condition and the [probationer]'s underlying offense is required. . . . Finally, 'the burden imposed by [the] probation condition' must be proportionate to 'the legitimate interests served by the condition.' [Citation.] Thus, ' "[a] condition of probation that enables a probation officer to supervise his or her charges effectively is . . . 'reasonably related to future criminality,' " ' only if its infringement on the probationer's liberty is not 'substantially disproportionate to the ends of reformation and rehabilitation.' " (In re Alonzo M. (2019) 40 Cal.App.5th 156, 166.)
In this case, defendant was convicted of perpetrating a $50,000 embezzlement. She personally used her employer's computer system to input 1,555 fraudulent transactions. She maintained electronic correspondence with her coparticipants to plan and communicate about the months-long embezzlement scheme. Moreover, although there is no probation report for this case, the prosecutor referenced an identity theft case that defendant was also involved in, and added that this conviction was not defendant's "first time around the block." Although the evidence showed that defendant was texting with her coparticipants over the course of many months, defendant did not use a social media site or an email account. Because of the nature of her crime, defendant concedes that the electronic search term is not an abuse of discretion. She, however, asserts that the condition should be narrower. She suggested that the condition could be limited "to a specified list of social media websites, email accounts, or applications." In her supplemental brief, filed after the Supreme court transferred the case back to us, defendant acknowledges that she "has never challenged the propriety of an electronic search condition in and of itself, only that such a condition must be narrowly tailored to the specific case." Defendant "contends that Ricardo P. supports [her] contention" and that "the blanket personal electronic device probation search term imposed on appellant must be vacated, and the matter remanded with directions to the trial court to narrowly tailor such a term." The People did not file a supplemental brief in opposition to defendant's supplemental brief. We agree that under Ricardo P., supra, 7 Cal.5th 1113, as discussed in detail ante, the probation term should be narrowly tailored to establish a connection between the search condition and defendant's criminal conduct.
Based on the above, we find that the electronic search condition is overly broad and we remand the matter to the trial court to narrowly tailor the term in accordance with Ricardo P., supra, 7 Cal.5th 1113.
DISPOSITION
The matter is remanded to the trial court to modify the electronics search condition after which the trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.) The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. I concur: SLOUGH
J.
Ramirez, P. J.
I respectfully dissent. Defendant Olivia Gilbert committed the crime using an electronic store cash register that was linked up to customer account databases — i.e., a computer. She sent her cohorts receipts by email — i.e., a computer. She also used her cell phone — i.e., a computer — to coordinate with her cohorts.
In response to my colleagues' holding that the electronic search condition is overbroad, I can only ask: If not now, when? If not her, who?
I would affirm. In my view, the electronic search condition should be upheld under the first as well as the third prong of the test laid down in People v. Lent (1975) 15 Cal.3d 481, 486. I cannot say that this condition "'has no relationship to the crime of which the offender was convicted" or "'is not reasonably related to future criminality." (Ibid., italics added.)
In re Ricardo P. (2019) 7 Cal.5th 1113 held that a proportionality requirement applies to the third prong of the Lent test, not the first. (Id. at pp. 1121-1122.) It further held that the electronic search condition in that case was overbroad, in part because "nothing in the record suggests that Ricardo has ever used an electronic device or social media in connection with criminal conduct." (Id. at p. 1122.) It specifically approved lower court cases that upheld electronic search conditions when the defendant's crime involved electronic devices. (Id. at pp. 1128-1129.)
Finally, I fail to see how the probation condition could be narrowed without eviscerating it. Defendant suggests that "the trial court could limit the government's search to a specified list of social media websites, email accounts, or applications." But as the People argue, "[l]imitations would only flag for appellant which 'applications' or 'social media sites' or 'email accounts' she would need to keep 'clean' to avoid detection of any potential ongoing criminal activity."
RAMIREZ
P. J.